My ex-wife and I separated in 2004 and divorced in 2005. The separation and divorce agreement was crafted through the help of a mediator, and filed with NYS. My question is related to child support and follows below. Specifically, my ex-wife and I jointly agreed on modifying the amount of child support I pay each month beginning in June 2006 and I have been paying it on-time each month including a statement with the payment detailing by line item the child support as well as the extra item that I pay every month. We've been amicable all along, however she recently consulted a lawyer and was advised to seek child support arrears going back to 2006 when we both agreed to the child support modification. The lawyer advised her that I am in violation of the support agreement filed with the courts back in 2004 because the modification that she and I made was not filed with the court. So, here is my question: Putting my shock and disbelief that she is pursuing this aside when she knows clearly that we agreed to the child support modification amount jointly (which is based upon the state percentages), do we both share in the responsibility of NOT filing with the court the modification we mutually agreed to? Or am I on the hook for the total arrears amount? (apparently, if we had filed the modification with the court even though our formal agreement does not state we needed to do that to make it “official”, then this wouldn't even be an issue)

Her attorney is right. Any modification of a court order HAS to be approved by the court. As far as the court is concerned the agreement doesn't exist.

Do you have the agreement in writing? If you do, you can try bringing it to the court and see if they will recognize it. If the Family court won't (and there is a very good chance they won't) you can try filing suit in civil court. Even if the agreement won't be recognized by Family Court, it still might be recognized as a legal contract. In other words you need to consult an attorney now.

Yes, your and her agreement if not signed off by the judge has no standing and the original agreement is still valid.

As Scott said, you may try and show it to the judge but seldom will it be accepted.

And it is not a mutal responsibility, each of you are have your own responsiliby to file and agree and make sure it is done according to law.

The original agreement signed off by the Judge has standing and not the other later agreement. You definitely need an attorney or they will get all the arrears and then some out of you.

I've been paying child support since 2004 directly to my ex-wife (when we separated and subsequently divorced in New York State). There has been no COLA applied to the payments and there was no provision included in the terms of our separation and divorce agreement. After consulting an attorney, she now is requesting COLA be included to the payments I make to her. I understand COLA and it makes sense to me.

According to the NY Child Support website, "Every two years the child support agency automatically reviews each child support order to determine cost of living increases. If the cost of living has increased by more than ten percent since the order was made or since the last review, the child support order amount will increase by the amount of the change in the cost of living. The cost of living adjustments can be made without going to court."

I have 2 questions:
1. How is the COLA determined for child support purposes? (where can I locate the %'s?)
2. Since there has been no COLA in my case up to this point, how should it be calculated? Here is what she claims is now due (she has summed up the COLA increases as follows - I don't know the source of her %'s yet):

2004 3.4
2005 3.4
2006 3.2
2007 2.8
2008 3.8
2009 2.7
Total 19.3%

She then says that my new payment should be the separation & divorce agreement amount filed with the court multiplied by the 19.3%. Is this correct? What happens when there was no account for the COLA in previous years? COLA makes sense to me, however is it really possible to get hit for all the previous years on payments going forward or does it begin now using the previous years %?

Wow, just trying to get my head straight on all this stuff and get prepared for some big changes.

That's isn't how COLA's work. Its not just a straight percentage. Also where is she getting her information from? And if the courts haven't raised it as you say the law says then why is she even trying to do it herself?

Here are some numbers from the federal government.

Cost-Of-Living Adjustments

Quote:

---

Originally Posted by califdadof3

Thats isnt how COLA's work. Its not just a straight percentage. Also where is she getting her information from? And if the courts havent raised it as you say the law says then why is she even trying to do it herself?

---

Thank you for your reply. How do COLA's work? Do you have an example that you can share?

Additional Information: We've never gone to family court, and filed our own divorce paperwork with the NY Supreme Court (in 2005) using the separation agreement that was filed by an attorney one year prior - the divorce decree was granted in 2005. In the separation agreement, it specifies a monthly amount of child support to be paid by me as the non-custodial parent based upon NY Child Support Guidelines. There is nothing mentioned in our agreement about COLA's, and I pay my ex-wife directly each month for the amount stated in the agreement. I hope this additional information provides further clarity of my circumstances.

Thank you all for your help. I hope this helps other honest non-custodial parents out there too. This is a situation where one shouldn't believe they'll ever be in this circumstance until it happens. Actually, I never even considered this as a possible outcome when we agreed on the modification back in 2006. I understand the law much better now that this has happened - ugg! I'll post a different question on emancipation as that is another consideration we're faced with too.

The lesson here is whenever you do anything that has legal implications make sure you know and understand what the law is. Generally this means retaining an attorney.

Good luck and keep us posted.

I separated (2004) and divorced (2005) from my ex-wife in New York State. My ex-wife and I have son who was 19 when asked by her & her new husband to move out of their home. The move occurred on September 1, 2009. He is attending a community college full-time, works part-time, and moved into a house with his "buddies". Again, he was forced to move out - and made arrangements to move in with his buddies, and has lived there ever since. This was a permanent move and not temporarily away to college.

Here are my questions:
1. do I have a case for the emancipation of our child beginning on September 1, 2009?
2. If yes, can I seek recovery of child support paid for this child back to September 2009?

To help in answering my questions, please refer to paragraph C below, taken directly from the divorce decree, which seems to apply in this case.

Here is the information from our divorce decree:
"An Emancipation Event shall be deemed to have occurred upon the earliest happening of any of the following:
A. Reaching the age of twenty-one (21) years or the completion of four academic years of college education during the years immediately following the child's graduation from high school, unless interrupted for good cause and does not exceed the child's twenty second (22nd) birthday, whichever last occurs;
1. Discontinuation of full time college study prior to the attainment of the age of twenty-one years also shall be deemed to be an emancipation event.
2. For the purposes of this Article, a full-time course of study shall be deemed to be the completion of twelve (12) or more academics credits per semester.

B. Marriage, even though such marriage may be void or voidable and despite any annulment thereof;

C. Permanent residence away from the residence of either parent. Residence at boarding school, camp or college is not deemed a residence away from the residence of either parent, and such residence at boarding school, camp or college is not an Emancipation Event.

D. Death of the child;

E. Entry into the armed forces of the U.S. or its Peace Corps, provided that the Emancipation Event shall be deemed terminated and nullified upon discharge from such forces and thereafter, the event period shall be the applicable period as if such Emancipation Event by reasons of said entry had not occurred.

F. Engaging in full-time employment upon and after the attaining of the child of 18 years except and provided that:
1. Engaging by the child in partial or part-time employment shall not be deemed an Emancipation Event, however, if the child is employed part-time and is capable of full-time employment, the parties shall re-enter mediation to determine a new support schedule based on the then-existing circumstances of the child's capabilities for self-support; and
2. Engaging by the child in full-time employment during vacation and summer periods only shall not be deemed an Emancipation Event.

G. Both parties agree than an Emancipation Event shall be deemed deferred beyond the twenty -first (21st) birthday of the child only if and so long as the child pursues college education with full diligence and on a continuous basis and in no event beyond the twenty-second (22nd) birthday of the child.

H. College education does not include education in the evening, unless said education constitutes a full course of study normally ending in four (4) years."


My ex-wife is positioning that it's like he is away to college even though she knows that she and her husband kicked him out due to him drinking and smoking (pot). Her exact words to me were "he needs to grow up and now is the time". She also explained to me when she did this that they can not have him in their home jeopardizing the already contentious divorce situation between her husband and his ex-wife and the custody challenges he faces with his ex-wife.

Thanks Scott. We chose a non-traditional route when we separated and subsequently divorced - mediation. We have a legally enforceable agreement filed with the courts, or so it reads and is stated in the terms, as the outcome of the mediation process. However, there are apparently other child support laws that supercede the mediation agreement filed with the courts. This is the part that doesn't make sense to me. I could see if I was a deadbeat dad, etc. and the purpose for those laws applying. However, I'm not a deadbeat dad, have paid regularly on time, the children have been taken care of very well, and when there is a legally binding agreement that specifies the modification process and rules for modification, etc... one would believe they are covered legally when following that agreement since it is enforceable. It is very disheartening when you feel like you have absolutely no recourse even though we both agreed to that agreement AND followed it exactly as written with respect to the modification that was done. To absolve one party completely when they both followed the agreement is unbelievable to me. We've both been operating under this modification agreement since 2006. It's crazy to find out that she can go back to that modification date and now claim arrears when she agreed to it per the modification terms of the agreement. Why isn't she held to a higher standard for not filing a violation back then? Or why isn't she held to the same responsibility level for filing the modification with the court as I am? It surely would have avoided this situation that is occurring now. It seems that we both should be held responsible 50/50 on this, and get this fixed going forward.

I know the answer - the law is the law. I wish someone could certainly help get this fixed for people like me caught in this type of situation. I'm trying to stay positive on this and think that this is somehow supposed to help my children, but it is difficult to believe that especially when one child no longer lives with her.

Thanks again for all of your help.

Quote:

---

Originally Posted by jpearley

Thank you for your reply. How do COLA's work? Do you have an example that you can share?

Additional Information: We've never gone to family court, and filed our own divorce paperwork with the NY Supreme Court (in 2005) using the separation agreement that was filed by an attorney one year prior - the divorce decree was granted in 2005. In the separation agreement, it specifies a monthly amount of child support to be paid by me as the non-custodial parent based upon NY Child Support Guidelines. There is nothing mentioned in our agreement about COLA's, and I pay my ex-wife directly each month for the amount stated in the agreement. I hope this additional information provides further clarity of my circumstances.

---

You can look at these links for the guidelines for New York and check how your currently doing.


ParentFurther - FamilyEducation.com

New York Law - What Are The Child Support Guidelines?

https://newyorkchildsupport.com/



Cola's over time is more like compounded interest on a savings account then just adding the numbers together.



Cola fixed at 10%. Starting dollar amount $10,000.


First year $10,000 plus 10% cola = $11,000.

Second year $11,000 plus 10% cola = $12,100



In the first example you gave the cola percentage was just added together. So in this case it would be 10% + 10% = 20%

20% of $10,000 = $2,000.

10% per year cola = $2,100.


Another thing is how close you both were in the first findings of income. If your both getting the cola's then the only real change is the difference between what the both of you made as a starting wage.

Thank you Califdadof3. I understand the example you provided and the different outcomes in the two scenario's. I still don't know how COLA's are likely be applied in our case:

1. Would the state go back since the beginning of our separation & divorce decree and determine a COLA "arrears" amount (is there such a thing?)? (assuming we end up in Family Court)
2. What would the state choose for the COLA percentage going forward (the most recent prev. yr's % applied to the current agreement amount, or a upon a modified base amount as a result of #1 above) (assuming we end up in Family Court)
3. Since our agreement is not part of the state's system and was handled completely outside the child support division of the State, and the agreement does not explicitly reference any COLA language, is COLA retroactive back to the beginning of the agreement?


Also, somehow my question on emancipation has been grouped within this trail of questions/answers even though it is a separate issue and submitted as a separate question. I haven't received any responses on it, and wonder if it got lost in the shuffle of the rest of the posts in this trail?

If she is filing with the courts you also should file. And file for termination of support based on independent living. That would nullify any further child support arguments.

If COLA was not part of the original paperwork and since both parents are getting one if you both work then there really is no argument to be made. The only one left to make is the amount of support if it is in place. As far as arrears if the paperwork didn't include financial statements to be exchanged then there really is no ground. Your first order was approved by the courts correct?

Thanks again Califdadof3. She has not filed yet, but has threatened that she is going to. COLA was not part of the original agreement approved by the courts. She is employed, and I am self employed. She gets raises, however I do not take salary as I'm still building my business.

She is being guided that she is entitled to the COLA in addition to child support arrears. I believe it is time for me to get an attorney and get this sorted out, which is really unfortunate because we've really been so amicable up to this point.

The original separation and divorce agreement was approved by the court. Interestingly enough as well is the fact that our agreement states that any future court action would be taken up in the Supreme Court and not ever in family court. Her new lawyer (not the one who approved the original agreement that is filed/approved by the court) has advised her that all matters surrounding the child support must be taken up in family court. This is yet another point of confusion for me because our agreement is so clearly written with respect to this.

Hmmmmm, depending upon the outcome of all of this , perhaps I need to go back after the mediator who prepared our original agreement, and the lawyer who approved it and filed it. We followed this agreement as written and approved by the courts. Now, I'm being told that I will be liable, solely, for not filing the modification with the family court. What good is/was the agreement that we had if it's incorrect and superceded by something else that we haven't been working with to begin with? Yeah, very frustrating for sure! However, I'm so grateful to have found this forum to query you and others out there on my situation. Thanks again for your help.

Looks to me like you do have grounds for emancipation.